The state of Ohio appeals the judgment of the Lorain County Court of Common Pleas dismissing the criminal charge against appellee, Otis C. Lewis. We reverse, and remand.
On September 17, 1996, Lewis was indicted for one count of domestic violence, in violation of R.C. 2919.25 (A). On October 16, 1996, Lewis was indicted for one count of domestic violence, in violation of R.C. 2919.25 (A), and one count of child endangering, in violation of R.C. 2919.22 (A). The charges of domestic violence were based on acts allegedly committed against his wife, Tiffany Lewis. Lewis pleaded not guilty, and the matters proceeded through pretrial and discovery. In December 1996, Lewis moved to dismiss the charges based on the fact that the victim did not want the prosecution to proceed and did not wish to testify. The lower court held a hearing on the motion and subsequently granted dismissal of the domestic-violence charges. The state appeals, pursuant to R.C. 2945.67, citing three assignments of error.
"I. The trial court committed error when, over the objection of the state of Ohio, and without regard to the evidence presented at the hearing, it dismissed two felony counts of domestic violence against the defendant even when the state stood ready to proceed to trial.
"II. The trial court did not give deference to the ability of the state to proceed with or without the victim and the quantity and quality of evidence the state possessed.
"III. The trial court did not properly follow State v. Busch and this court should revisit the Busch issue."
In dismissing the domestic violence counts against Lewis, the lower court attempted to follow the Ohio Supreme Court's decision in State v. Busch (1996), 76 Ohio St.3d 613, 669 N.E.2d 1125, which held that "[a] trial court has the discretion to sua sponte dismiss a criminal case over the objection of the prosecution where the complaining witness does not wish for the case to proceed." Id. at syllabus. The state's assignments of error on appeal essentially boil down to two arguments: (1) Busch is bad law and needs to be revisited, and (2) Busch is distinguishable from the case at bar. In terms of the first argument, whether or not we agree with the Supreme Court majority in Busch, it is not this court's prerogative to "revisit" that decision, as the state suggests. However, we agree that Busch is distinguishable from the case at bar, and it is for this reason that we reverse the lower court's decision and remand for trial on the merits. *Page 354
The facts in Busch are similar to those in the current case in that it, too, involved a domestic dispute. In that case, the victim filed two complaints concerning two incidents of physical abuse at the hands of her boyfriend, Busch. On the first occasion, Busch allegedly struck the victim in the face. On the second, he allegedly dragged her down some stairs and burned her with, a cigarette. As a result, Busch was charged with two counts of domestic violence and two counts of assault. Later, however, the victim signed an affidavit stating that she did not wish to proceed with the criminal charges. Thereafter, she testified on three separate occasions, at pretrials before the lower court, that she wished to have the charges dropped.
Ultimately, the lower court in Busch dismissed the case. The Franklin County Court of Appeals reversed the dismissal, and the case proceeded to the Ohio Supreme Court, where the decision of the lower court was reinstated. In reaching its conclusion, the Supreme Court majority wrote, "We do not suggest that in every domestic violence case where the victim refuses to testify a trial judge has the unfettered power to dismiss the case." Id. at 616, 669 N.E.2d at 1128. It then proceeded to cite five factors that a lower court should consider before granting such a dismissal: (1) the seriousness of the injuries, (2) the presence of independent witnesses, (3) the status of counseling efforts, (4) whether the complainant's refusal to testify is coerced, and (5) whether the defendant is a first-time offender. Id. We believe it is on factors two and five that the current case can and should be distinguished from Busch.
In Busch, it appears that the victim refused to testify against the defendant. It also appears that without her testimony, the state had no other evidence on which to proceed with its prosecution. The Supreme Court evidently found the state's lack of evidence significant as the second of the five factors, the presence of independent witnesses, appears to reflect its intent that the lower court consider the state's ability to proceed in light of the victim's reluctance. When the state's ability to proceed is duly considered under the facts before us, we find that this case quickly distinguishes itself from Busch. First, in this case, Mrs. Lewis clearly did not refuse to testify against her husband. In fact, at the hearing, the prosecution asked her if she would testify and testify honestly if subpoenaed to do so, and she indicated that she would. Far beyond this, however, the state presented no less than five independent witnesses who were willing and able to testify to the domestic abuse committed by this defendant against his wife.
First, the state presented the testimony of two police officers who had responded to several domestic dispute calls at the Lewis residence. The first responded to a call received in March 1996. He testified that at that time, Mrs. Lewis appeared very shaken and scared and stated that her husband had struck *Page 355 her. This officer also responded to a call on August 8, 1996, which was the incident underlying the second indictment. He testified that at that time, Mrs. Lewis stated her husband had "shoved her around and pushed her around and knocked her down to the ground." The second officer stated "that he responded to a domestic violence call at the Levis residence on August 17, 1996. This was the incident underlying the first indictment. This officer testified that on that day, he found Mrs. Lewis "crying, shaking, nervous," and that she told him her husband had "hit her in the back of the head, knocking her to the ground." Then, she told him, Mr. Lewis had "grabbed her by the throat and was threatening to kill her."
Also witness to at least some of the events of August 17, was Mr. Lewis's boss, David Brown. Brown testified that at one point on that day, he had positioned himself between the Lewises to prevent the mounting possibility of physical violence. Although Brown was called as witness for the defense, he indicated on cross-examination that if subpoenaed to testify at trial as to the events he had witnessed that day, he would do so honestly.
In addition, the state presented the testimony of the executive director of the domestic violence shelter in which Mrs. Lewis sought refuge on two separate occasions, and the testimony of Mrs. Lewis's son. The former witness testified that Mrs. Lewis told her on one visit that her husband had burned her. While the latter witness did not personally testify at the hearing on the motion to dismiss, the state indicated that he would testify if the cause proceeded to trial. His testimony would concern the alleged incident of August 8, 1996. Mrs. Lewis testified that on that occasion, her eight-year-old son had felt the need to protect her by running to a neighbor's house to call the police after he witnessed the defendant bring out a belt in the midst of an argument.
In her dissenting opinion in Busch, Justice Cook wrote, "Although the majority suggests that the prosecution in this case could not proceed without [the victim's] testimony, we do not know that from the record on appeal." Id. at 617-618,669 N.E.2d at 1129. Quite to the contrary in this case, we think it clear from the record that the state could have proceeded with Mr. Lewis's prosecution, with or without the cooperation or testimony of Mrs. Lewis, and we believe this to be a significant distinction from the facts in Busch. In addition, we believe another distinction can and should be made on the basis of the fifth factor cited by the Supreme Court, whether the defendant is a first time offender. Here, Lewis's indictment indicates that he was already convicted of one prior offense of domestic violence on September 25, 1992. Clearly, then, Lewis is not a first-time offender.
In setting forth its five minimum considerations for a lower court contemplating sua sponte dismissal, the Supreme Court did not indicate that these were the *Page 356 only factors to consider or that each should be given equal weight. In light of the seriousness, of the offense, we believe Lewis's prior conviction alone may be a significant enough distinction to prevent a lower court from dismissing a charge over the state's objection. When coupled with five independent witnesses and the victim's testimony, voluntary or not, we believe that this case represents a substantial departure from the factual scenario presented in Busch. Accordingly, we believe that the lower court abused its discretion when it dismissed the charges over the state's objection. We reverse the decision of the lower court and remand for consideration on the merits.
Judgment reversed and cause remanded.
SLABY and BAIRD, JJ., concur.
QUILLIN, P.J., dissents.